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Greer v. Colvin

United States District Court, M.D. Tennessee, Nashville Division

April 20, 2015

JAMES L. GREER, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM

WILLIAM J. HAYNES, Jr., Senior District Judge.

Plaintiff, James Greer, filed this action under 42 U.S.C. § 405(g) against the Defendant Carolyn Colvin, Acting Commissioner of Social Security, seeking judicial review of the Commissioner's denial of his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act.

Before the Court is Plaintiff's motion for judgment on the record (Docket Entry No. 15) contending, in sum, that the Administrative Law Judge ("ALJ") erred by failing to consider properly Plaintiff's functional capacity evaluation, the medical certificate completed by Dr. Babat, Dr. Hazlewood's opinion, and by failing to complete a function-by-function analysis in Plaintiff's residual functional capacity evaluation. The Commissioner contends that the ALJ's decision is supported by substantial evidence.

The ALJ evaluated Plaintiff's DIB claim using the sequential evaluation process set forth at 20 C.F.R. § 416.920. (Docket Entry No. 11, Administrative Record at 14-16). At step one, the ALJ found that although Plaintiff had engaged in work since the alleged onset date of his disability, this work did not rise to the level of substantial gainful activity. Id. at 16. At step the ALJ determined that Plaintiff does have a severe impairment: residuals of lumbar fusion. Id . This impairment "significantly limits the claimant's ability to perform basic work activities." Id . At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments found in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525 and 404.1526). Id . The ALJ did not find any physician who determined that Plaintiff's impairments met or medically equaled a listed impairment, and did not find evidence in the medical record that Plaintiff met the criteria for a musculoskeletal disorder. Id. at 16-17. At step four, the ALJ determined that Plaintiff had the residual functional capacity to perform light work with the following limitations: ability to lift and/or carry twenty pounds occasionally, and ten pounds frequently; ability to stand and/or walk for four hours and sit for four hours in an eight hour workday; ability to occasionally balance, stoop, kneel, crouch, crawl, and climb; and a mandate to alternate sitting and standing at will. Id. at 17. At step five, the ALJ utilized the testimony of the vocational expert to conclude that although Plaintiff is not capable of performing past relevant work, Plaintiff can perform certain other work. Id. at 21-22. The ALJ concluded that Plaintiff was not disabled within the meaning of the Act and was not entitled to disability benefits. Id. at 23. Following this decision, Plaintiff requested a review. Plaintiff's request for review was denied on June 26, 2014.

A. Review of the Record

On March 2, 2011, Plaintiff James Greer applied for Disability Insurance Benefits ("DIB"). Id. at 145. This application stated an onset date of August 1, 2010, and listed Plaintiff's medical condition as "bulging disc & pinched nerve in back." Id. at 191. At the time, Plaintiff reported taking hydrocodone and morphine and requiring a walker and a cane. Id. at 193, 213.

Plaintiff's alleged onset date of disability is August 1, 2010. Id. at 60. On July 21, 2010, the date of Plaintiff's injury, Dr. Harold Nevels evaluated Plaintiff at Tennessee Urgent Care Associates. Id. at 260. Dr. Nevels noted that "[patient] went to pick up cardboard and fell. [Patient] states he fell backwards and landed on rightside. Injury occured around 9:00am this morning." Id . Plaintiff reported "numbness and pain, " "pins and needles" and "pain 8 on a scale of 1 to 10." Id . Yet, Dr. Nevels wrote that Plaintiff "says hurts when he raises right leg but able to get normal elevation and does not appear to be in pain at the level of 8/10 as he describes." Id. at 262. Dr. Nevels prescribed several pain medications, including hydocodone, recommended application of heat and ice, and scheduled a follow-up in seven days. Id.

On July 26, 2010, Plaintiff returned, complaining of "constant and stabbing" pain that was "9 on a scale of 1 to 10." Id. at 257. Dr. Nevels noted that Plaintiff "says back pain worse and wants time off. [A]dvised I can only evaluate him today and place him on restrictions." Id . Dr. Nevels also noted that Plaintiff "feels he needs stronger medications for pain" and that Plaintiff "[bjecame very angry with me when I advised I would not give him time off but could only give him modified duty." Id. at 257, 258. Dr. Nevels recommended that Plaintiff see an orthopedist, then prescribed more hydrocodone and etodolac, another pain medication. Id. at 258.

On August 17, 2010, Dr. Brett Babat evaluated Plaintiff, noting that Plaintiff had "pain across the low back that radiates down to the right thigh and knee, " and "his right leg gives out at times because of severe pain and pressure, " and "[Plaintiff] rates his pain as a 10/10." Id. at 518-3 519. After reviewing Plaintiff's X-rays, Dr. Babat prescribed Plaintiff two anti-inflammatory drugs and physical therapy combined with exercise. Id. at 519. Dr. Babat's diagnosis was "possible disc herniation, spondylosis, and radiculitis." Id . Dr. Babat also completed a "Work Status Report" for Plaintiff, with the following restrictions: "avoid lifting more than 5 pounds, " "no continuous bending, stooping, lifting, twisting, " and "sit/stand as needed." Id. at 520. Dr. Babat cleared Plaintiff to return to light duty a week later, on August 23, 2010. Id.

On August 27, 2010, Plaintiff returned, complaining that he was "still having pain going down his right leg." Id. at 516. Dr. Babat suggested a "right-sided L4-5 transforaminal epidural steroid injection" and applied "no changes in work status." Id . Dr. Babat completed another "Work Status Report, " restricting Plaintiff from "lifting more than 10 pounds, " and "continuous bending, stooping, lifting, twisting." Id. at 517. Plaintiff was allowed to return to light duty that day. Id.

Plaintiff returned to Dr. Babat on September 7, 2010. Id. at 515. Dr. Babat reported, "Mr. Greer is not doing any better, " and noted that Plaintiff was awaiting worker's compensation approval for his epidural injection. Id . On September 21, 2010, Plaintiff received an epidural injection. Id. at 513.

On September 30, 2010, Dr. Babat reported that Plaintiff's steroid injection did not help, Plaintiff had difficulty sitting for more than thirty minutes, standing or walking for more than ten minutes, Plaintiff "appearfed] to be frustrated" and [Dr. Babat] "had difficulty getting feedback during the evaluation." Id. at 510-512. On October 1, 2010, Plaintiff reported that after the procedure, "all his pain returned." Id. at 508. Dr. Babat's notes reflect that Plaintiff was "lying prone during the interview, even just sitting up just to talk causes him terrible pain. The right leg has given out on him and he has fallen more than once now." Id . Dr. Babat suggested a discectomy, and Plaintiff agreed. Id . Dr. Babat reported that because Plaintiff was "taking more than 10 Lortab [a pain medication] a day and still not getting adequate relief, " he prescribed Percocet. Id.

On October 12, 2010, Plaintiff returned with "no significant change." Id. at 506. According to Dr. Babat, Plaintiff had "shown little to no improvement toward treatment goals. [Patient] refuses to attempt to ride bike and has been reluctant to perform exercises despite education on benefits of therapy. [Patient] appears to want surgery." Id.

On February 9, 2011, Dr. Babat performed Plaintiff's surgery. Id. at 265. The surgery involved a "L4-L5 transforaminal lumbar interbody fusion, L4-L5 posterior spinal fusion, L4-L5 anterior interbody device application, and L4-L5 instrumentation." Id. at 266. At discharge, Dr. Babat noted that "[Plaintiff's] pain did improve." Id.

On February 22, 2011, Dr. Babat reported that Plaintiff had "not been outside the house, " but "overall, he is getting better." Id. at 503. Plaintiff was able to stand from a wheelchair, and walk "upright to the X-Ray Department and back without any problems." Id . Dr. Babat's records reflect that he prescribed "MS Contin 30 mg and Lortab 5 mg" for pain and two weeks off of work. Id.

On March 22, 2011, Plaintiff returned, saying "overall he [felt] much better, " and "he [was] moving much better now." Id. at 501. Plaintiff walked with a cane, but could also walk without it. Dr. Babat refilled his Percocet prescription and released him to work with the following restrictions: ...


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